Excerpt: - - if the trustee fails to make such a return within such time or makes a return which in the opinion of the board is not correct, the board may assess the income to the best of its judgment; i do not think i can distinguish the facts of this case in better language than how it was distinguished by their lordships in the case quoted above......the contribution was payable only after its levy but he was of opinion that as in this case the levy of contribution was for more than one fasli and for several faslis prior to that in which it was levied it was a capricious and arbitrary act and on the strength of the decision in taluk board, bandar v. zamindar of chellapalli (1920) 40 m.l.j. 91 : i.l.r. 44 mad. 156 found that the board was not entitled to so levy, it is conceded for the respondent that the ruling has no application to the facts of this case. as a matter of fact, it has no application to the facts of this case. it cannot be said that the levy of contribution payable by a temple trustee, merely because it happens to be for several faslis prior to that in which it was levied was a capricious or arbitrary act,3. it is.....

Judgment:

Kuppuswami Ayyar, J.

1. The defendant, the Hindu Religious Endowments Board, is the appellant and the appeal arises out of a suit filed by the archaka trustee of a temple for an injunction restraining the Board from asserting any right to recover or from recovering any contribution from the temple, as due under Section 60-A of the Madras Acts II of 1927 and XI of 1931. The Board claimed a right to collect not only for the current fasli, but also for nine faslis prior to the then current fasli. The first Court dismissed the suit. The appellate Court found that the Board had no power to levy arrears and that it had power only to levy for the current and for the prior fasli. Hence this appeal. The only point for consideration is whether the Board had power to levy the contribution for faslis 1336 and 1344.

2. The learned Subordinate Judge conceded that there was no period of limitation fixed for recovering contributions and that the contribution was payable only after its levy but he was of opinion that as in this case the levy of contribution was for more than one fasli and for several faslis prior to that in which it was levied it was a capricious and arbitrary act and on the strength of the decision in Taluk Board, Bandar v. Zamindar of Chellapalli (1920) 40 M.L.J. 91 : I.L.R. 44 Mad. 156 found that the Board was not entitled to so levy, It is conceded for the respondent that the ruling has no application to the facts of this case. As a matter of fact, it has no application to the facts of this case. It cannot be said that the levy of contribution payable by a temple trustee, merely because it happens to be for several faslis prior to that in which it was levied was a capricious or arbitrary act,

3. It is urged for the respondent that the levy can be made only for the year in which it was levied and not for previous faslis as the Act does not empower the levy of such contributions. It is the absence of any express provision in the Act empowering the Board to levy for the faslis prior to that in which it was levied, that is sought as the basis for the plea of the respondent that the Board has no power to collect arrears, and reliance was placed for this on the decision in Prince of Arcot v. Corporation of Madras : (1929)57MLJ536 . That was a case of a levy of profession tax for several half years in a particular half year and it was held that the Madras Corporation had no right to levy for such previous half years. This case in question is on all fours with the case in Gopalaswami v. Secretary of State for India : AIR1933Mad748 , The contribution leviable from trustees under Section 69 of the Act becomes payable only after the Board issues a notice calling upon the trustee to pay the contribution. It is the notice that entitles the Board to levy the contribution. The trustee is given under Section 70 one month's time to pay the same. In default of payment the Collector of the District in which that property is situate shall on requisition made to him by the President of the Board recover such amount as if it were arrears of land revenue. The Collector on receipt of such a requisition has to give the trustee fifteen days' notice within which it will be open to the trustee either to pay or submit his objections. The objection will have to be forwarded to the Board and the Board has to pass orders thereon. On receipt of such orders from the Board, the Collector will have to distrain the property and collect the amount. Under the rules framed by the Government the assessment of contribution payable by a temple has to be made for each fasli on the basis of the income realised during the previous fasli. The trustee of the temple has to prepare a statement and submit it to the Board on or before the 30th September. If the trustee fails to make such a return within such time or makes a return which in the opinion of the Board is not correct, the Board may assess the income to the best of its judgment; and that becomes the amount leviable as contribution. Neither in the Act, nor in the rules is it stated that the contribution should be levied either for that fasli in which it was levied or for the previous fasli. There is no time limit for the levy of contribution. The case in Gopalaswami v. Secretary of State for India : AIR1933Mad748 was a case of a levy of duty under the Cotton Duties Act. Under that Act, the duty was payable monthly and the manufacturer had to submit in the beginning of each month the value of the articles manufactured by him in the previous month and the levy should be made on the amount shown in that return. Of course, it was open to the Collector also to revise it or to fix his own value of the articles manufactured, if he found it not satisfactory. The provision as regards the levy and the provision as regards the person who has to initiate the levy are similar in that case also. The plaintiff in that case started the factory in 1913 and it was only in February, 1923, ten years later, that the Revenue Divisional Officer, called upon the plaintiff to submit the return and subsequently passed orders assessing the goods produced in the factory from its establishment up to the end of 1922. The plaintiff contended that he was not bound to pay the arrears and that the revenue authorities had no power to collect the arrears of duty over a period of years and their Lordships held that since the Act was silent as to the period for which the levy could be made the authorities were justified in levying the duty payable from the date of the establishment though the levy was nearly ten years later. The decision in Prince of Arcot v. Corporation of Madras : (1929)57MLJ536 was cited before their Lordships and this is how their Lordships distinguish that case from the facts of the case before them:

We have been asked to find another analogy in the payment of profession tax under the Madras City Municipal Act (IV of 1919) and some reliance has been placed upon the Prince of Arcot v. Corporation of Madras : (1929)57MLJ536 , which deals with a case arising under that Act. In respect of an allowance received from Government, the Commissioner of the Corporation assessed the Prince of Arcot to profession tax in September, 1926, for the ten half years commencing from the second half year of 1920-21 and the question arose whether this assessment could be made so as to comprise such arrears. The answer given by the Bench was in the negative, the scheme of the Act requiring that the assessment must be made during the period to which it relates.

I do not think I can distinguish the facts of this case in better language than how it was distinguished by their Lordships in the case quoted above. There is nothing in the scheme of the Hindu Religious Endowments Act to suggest that it was the intention of the Legislature that the levy should be either in the year for which it is levied or in the next year. I am not able to see any hardship to the institution by the delaying of such levies; for it is their default in sending the returns that resulted in the contribution not being levied. As pointed out in the case in Gopalaswami v. Secretary of State : AIR1933Mad748 , the person who had to initiate the proceedings before contribution could be levied was the temple and when it did not send the return and remind the Board of the fact that it was liable to pay contribution, it would have to thank its own stars, and I do not think any consideration of hardship will justify an interpretation which would deny the Board of its right to levy the contributions due to it.

4. I therefore find that the learned Subordinate Judge was wrong in having found that the Board had no right to levy the contribution payable for faslis 1336 to 1344. In the result the second appeal is allowed and the decree of the lower appellate Court is set aside and the suit dismissed with costs in all the three Courts. Leave to appeal is refused.